Thursday, January 04, 2018

(Guest Post): Prosecute the First Order for War Crimes

The following is by Jill Goldenziel (Marine Corps University and other affiliations), former GuestPrawf and friend of Dan. I have not see "Last Jedi," so I could not have written this if I had wanted to.

The Jedi order is gone. The Resistance has been decimated. Given their military weakness, the Resistance needs innovative tools to fight and win against the brutal, genocidal First Order. Skilled use of Lawfare, law as a weapon of war, can bolster the Resistance and bring the First Order to its knees. The Resistance must call for the Interplanetary Criminal Court (ICC) to issue immediate arrest warrants for Supreme Leader Kylo Ren and General Armitage Hux for their heinous war crimes against the creatures of the galaxy.

While the Geneva Conventions did not exist a long time ago, in a galaxy far, far away, both parties are bound by customary international law (CIL). CIL developed according to the practices of respected planets over the centuries, most notably the Old Republic. It is unclear whether the current conflict qualifies as an Interplanetary Armed Conflict (IAC) or a Non-Interplanetary Armed Conflict (NIAC). The First Order rose from the ashes of the Empire, and the Resistance fights to defend the Republic, although it is never identified as the Republic’s military. However, whether this particular conflict involves state actors or counterinsurgents, the same principles of the Law of Armed Conflict apply—and the First Order has flagrantly violated them.

Whether state or non-state actors, the First Order and the Resistance both qualify as combatants under customary international law, and are therefore entitled to combatant’s privilege and protections as prisoners of war (POWs). Both groups wear distinctive insignia recognizable from a distance and known throughout the galaxy, even to small children. Both parties have a continuous combat function and carry arms openly. Both are organized groups that participate in a command structure responsible for its actions toward belligerents. This holds true even given confusion within their commands. The First Order’s Stormtroopers report alternately to General Hux and Supreme Leader Kylo Ren, depending on whose voice sounds eviler at the time. The command structure of the Resistance makes no apparent sense. For example, a vice-admiral reports to a general, and few others seem to hold a rank. Unlike the First Order, however, the Resistance appears to follow customary Laws of Armed Conflict. Indeed, the Resistance is so concerned with minimizing casualties that they recently sent a single ship to distract the entire First Order space fleet, and a single man with a laser sword to confront the entire First Order ground force. Somehow, this crazy plan ensured that no civilian lives were lost in the Battle of Crait.

The First Order has repeatedly committed genocide against the creatures of the Republic. Starkiller Base destroyed the entire Republic Capital Star System, extinguishing entire humanoid and alien species in the process. The First Order’s wanton destruction also violated the four core principles of the Law of Armed Conflict: Necessity, Proportionality, Distinction and Humanity. Its actions were not necessary to achieve a lawful military objective. They were excessive in proportion to the concrete and direct military advantage gained, showed complete disregard for civilian life, and caused tremendous human suffering. The First Order again attempted genocide when it aimed to destroy the entire planet of D’Qar to defeat the Resistance. The First Order must be brought to justice for these unspeakable war crimes.

The First Order also committed egregious offenses against POWs. After then-Special Operator Kylo Ren captured the target known simply as “Rey,” he strapped her down and tortured her using mind tricks. When Captain Phasma captured Rose Tico and Finn, she was in complete control of the Stormtroopers who announced their intention to “make this hurt” and began to torture the prisoners with electric forks. Torture of prisoners is a flagrant violation of the customary Law of Armed Conflict that warrants immediate prosecution.

Finally, the First Order used disproportionate force on Luke Skywalker. Supreme Leader Kylo Ren ordered every one of the First Order’s weapons to be fired on Skywalker—force that was clearly disproportionate to the desired military objective of killing a single human target. Even General Hux was appalled by the amount of force applied. After Skywalker refused to use his lightsaber and effectively surrendered, Ren struck him down, in violation of customary Law of Armed Conflict. Although the target was actually an astral projection, Ren’s actions undeniably contributed to Skywalker’s untimely death, and must be punished by law.

Critics will argue that prosecuting Supreme Leader Kylo Ren and General Hux could put the ICC in immense danger of destruction by the First Order. However, the ICC’s failure to prosecute First Order leaders would be suicide. The ICC is facing a crisis of legitimacy, with several planets recently having withdrawn from the Coruscant Statute that created it. If the ICC fails to act in the face of genocide and obvious war crimes, the entire galaxy will lose faith in the institution, destroying its legitimacy forever. Moreover, at a time of little hope for the Resistance, the ICC’s action is vital for keeping the movement alive. ICC prosecution of the First Order would be a clarion call of “Never Again” that would rally allies to join the Resistance. “Never Again” is even easier to pronounce than “Luke Skywalker,” “and is a cry that even small children can understand.

Posted by Howard Wasserman on January 4, 2018 at 11:08 AM in Culture | Permalink

Comments

What, pray tell, are the customary norms of Intra-galactic law?

Just as the Geneva Conventions are part of a Western imperalist project, moreover, why believe that a galactic analogue would be any less of one? The customs of European states are rendered morally and politically legitimate by virtue of the undemocratic colonial governments they created elsewhere having signed on board?; the norms of a government backed by a theocratic, force-cult are to be respected in the rest of the galaxy because of... a comparable process? (Just why the hell are there so many humanoids in positions of power in the Galaxy, anyway? What did the Tatooine natives think of Luke's uncle and aunt living on their planet, let alone about the Republic?)

Furthermore, who is to say that the ICC is not just a stooge of the First Order? Does it have a track record of routinely trying and prosecuting the galaxy's most powerful leaders to suggest otherwise, or does it instead tend to select the relatively weak and impotent, economically and politically speaking? (What legal actions were taken regarding Darthy and Emperor Papatine?) If not, why would the court start with the First Order - thereby also threatening their cushy pensions and the perks of living on Hague Prime?

Here's another worry: is the First Order economically more efficient than the Republic? Will the ICC really want to mess up intra-galactic trade?

In all seriousness, the ICC and what army? Wouldn't the First Order have to be destroyed in order for its conquerors, the Resistance and the Republic, to prosecute it for war crimes? So then isn't the ICC just a tool of the Resistance?